Can a Tailor Mend the Analytical Hole? A Framework for Understanding Corporate Constitutional Rights


The Supreme Court’s decisions relating to corporate constitutional rights are a conceptual quagmire. While the Court has grappled with the proper scope of corporate rights for more than two centuries, it has failed to articulate a consistent approach to determine which rights corporations should receive and how those rights should be delineated. As a result, the Court has issued a long line of decisions with conflicting and internally inconsistent reasoning—sometimes extending the existence and scope of certain constitutional rights to corporations, while at other times limiting entire categories of rights to natural persons. The Court’s recent decisions in Citizens United v. Federal Election Commission and Burwell v. Hobby Lobby Stores, both of which expanded the scope of corporate constitutional rights, have resulted in increased scrutiny of the Court’s seemingly ad hoc process of adjudicating corporate rights.

This Comment proposes an analytical and normative framework drawn from the Supreme Court’s jurisprudence on institutional tailoring to fill this void. In several other settings, including government workplaces, prisons, and K–12 public schools, the Court has limited people’s constitutional rights to bring about greater institutional effectiveness and efficiency. Although institutional tailoring has historically been limited to these institutions, its underlying rationales apply with equal or greater force to corporations. Institutional tailoring can therefore serve as an analytical framework for the Court to decide the precise scope of corporate constitutional rights.

About the Author

UCLA School of Law, J.D. 2017.

By uclalaw